Katsonis v Crown Prosecution Service [2011] EWHC 1860 (Admin)

Case No CO/6339/2010[2011] EWHC 1860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 29 June 2011
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
ATHANASE KATSONISAppellantv
Between
CROWN PROSECUTION SERVICERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS R JONES (instructed by Sternberg Reed) appeared for AppellantMISS J HOLMES (instructed by CPS Westminster) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: This is an appeal by a case stated against the conviction by the Justices of the appellant on 11 January 2010 for an offence of common assault by him on a Miss Dix. The prosecution arose out of an incident which occurred on a crowded commuter train at Brockley Railway Station on 26 August 2009. It seems that the train was, to all intents and purposes, full, but that Miss Dix who was on the train was the victim of unwanted contact by the appellant, who, together with his wife, got onto it at Brockley Station.[2]The incident was witnessed by two independent witnesses, who gave evidence at the hearing, and by the complainant, by the appellant and his wife. A Dr Helen, who was on the train when it arrived at Brockley, noticed the complainant pushed against the glass divider separating the access to the carriage from its compartment by the appellant. There was a certain amount of pushing between them, at which the appellant became angry and, as Dr Helen put it "reached out with a closed hand to the woman's back, striking her between the shoulder blades in the middle of her back". Dr Helen's reaction, instinctive as it must have been, was to ask the appellant whether he had just punched that woman, to which he replied "No".[3]The other bystander, a Mr James Wentworth Taylor, got onto the train at the same time as the appellant and his wife. The complainant complained that she was squashed and had her hands up against her chest. At that point Mr Wentworth Taylor saw the appellant moving his hand across "in a punching motion", but he saw no contact. He described the appellant as agitated and aggressive. The complainant herself said that after an altercation between her and the appellant and his wife, and after the doors had closed, the appellant punched her in the ribs on the right side at the front. She said that she saw his hand come from between two other people.[4]Accordingly what the witnesses called for the prosecution described, albeit in different terms, was the throwing of a deliberate punch by the appellant. The appellant's account was different. He said that he was trying to help his wife, who had boarded the train but fallen back onto the platform, and extended his arm and hand to her to grasp. At that point the complainant put her arm out and hit his arm. He denied trying to strike her at all, and said that he was simply trying to help his wife. His wife said that she was punched in the stomach by a woman, presumably the complainant, and as a result staggered back and fell onto the platform. She confirmed that her husband had held out his hand to help her up and said words, that he did not speak, that whoever it was who had hit his wife should not do so.[5]There was evidence that as a result of an assertion that he made about his own character he had been cautioned for an assault upon another woman later that day also on a train.[6]The prosecution case accordingly was straightforward. The appellant had punched Miss Dix. His case was that he had not punched her, indeed she may have hit his wife, and in so far as there was any contact between him and the complainant it was when her arm, as a result of a deliberate act by her, touched his arm.[7]The Justices made no express finding that the appellant had not struck a deliberate blow at the complainant. What they did was to observe as follows:
"We were advised that should we not accept that there was an intention on the part of [the appellant] to assault [the complainant] that we should consider whether he was reckless in doing so, namely did [the appellant] foresee the risk of unlawful violence to [the complainant]? And having foreseen it took that risk by his actions"
. They found that:
"We were of the opinion that [the appellant] did foresee that there was a risk of unlawful violence to [the complainant], but nonetheless took action and assaulted [her] and accordingly we found [the appellant] guilty of assault on a reckless basis."
[8]It seems, therefore, that the Justices must necessarily have rejected the prosecution case that the appellant struck a deliberate blow at the complainant. At the start of the case they set out their express finding:
"We ... found as a fact that contact was made by the hand of [the appellant] to [the complainant] that contact was unwanted. We found that an assault would have been inevitable by the actions of [the appellant] reaching out in such a manner in such a crowded space he had foreseen the risk of unlawful contact and nonetheless took that risk."
[9]Two things are immediately apparent from that wording: first they found that it was the hand of the appellant which had come into contact with the complainant, not his clenched fist; secondly, they found that contact had occurred because of "reaching out" by the appellant. In other words, they have not found that he threw a punch, or even that his arm was flailing about. Had they so found a finding of reckless, assault would have been open to them. In the first instance although he may not have intended to strike a deliberate blow, he might have so conducted himself by punching towards the complainant as to risk bringing his fist into contact with her, even though he may not have intended that it should have contacted her. In the case of flailing about he could well have been found to have risked striking a person, or people, in that crowded carriage.[10]However, the Magistrates made no such finding. What they did was simply to find that he was "reaching out". Reaching out in a crowded train to help his wife could clearly not have been an unlawful act. Reaching out to support himself against the movement of the train could not have been unlawful. It is accordingly unclear to me what it was that the Justices found was the unlawful act. Having rejected a punch, having not asserted flailing about, I am simply left in the position of not knowing what it was that the Justices found the appellant did which was unlawful.[11]The situation is not that different in principle from that which caused Harrison J in Cooper v the DPP to allow an appeal against conviction of assault on a police officer in the execution of his duty. In that case reckless assault had been found, but the Justices did not find what bodily movement had produced the reckless assault. Here the Justices have made a finding of the bodily movement that resulted in the contact, but have not explained how that bodily movement could have been unlawful.[12]The questions posed by the case, to which I will refer in a moment, do not clearly raise the difficulty which I concede exists in this conviction. They raise two questions, to which a principled answer can be given, which takes the matter no further:
"(a) In circumstances where the prosecution case is that a deliberate punch was thrown, charged as an assault by beating and that version is rejected by the Justices, is it open for the Justices to find the defendant guilty on a reckless basis? (b) Is there evidence that [the appellant] could have reasonably foreseen a risk of unlawful violence to [the complainant] by his actions?"
The answer to the first question is that in principle it is open to the Justices to convict on the basis of the recklessness when the prosecution case charges a deliberate assault (see D v DPP [2005] EWHC 967 (Admin)). The difficulty is not the issue of principle, but of understanding how, on the facts found by the Justices, a finding of unlawful conduct was open to them. The answer to the second question:
"Is there evidence that [the appellant] could have reasonably foreseen a risk of unlawful violence to [the complainant] by his actions?" is "
Yes, there was", but only if the Justices had found that he had thrown a punch, albeit not intended that it should land, or was flailing about in an agitated and ill-tempered manner. On the findings that he simply reached out, it is difficult to see how he could properly have been convicted of common assault.[13]Accordingly, although the answers to the questions posed by the case do not, in principle, require that the appeal should be allowed, the analysis of the Justices' reasoning, which I have undertaken, demonstrates that it must be. There was material here upon which the appellant could properly have been convicted, but not on the basis explained in the case by the Justices.

MR JUSTICE MITTING: What is to be done about it?

[15]MISS JONES: I would invite an order for the quashing of the conviction in this case.

MR JUSTICE MITTING: I think that has to follow.

[17]MISS JONES: What happens thereafter --[18]MR JUSTICE MITTING: It is a matter, first of all, for submission and then for decision by me. Miss Holmes, do you have any instructions or any view about what should happen?[19]MISS HOLMES: I have no instructions as to what should happen in this eventuality at all. It is perhaps, having heard your Lordship's judgment, an odd case in which in principle an appeal should not have been allowed and a case in which the Justices have not expressed themselves clearly in their reasoning. What I would submit is that it is something that perhaps should be retried in circumstances where an appeal, perhaps in principle, should be allowed because of the badly worded judgment by those in the lower court. It should not stand to reason that this defendant --[20]MR JUSTICE MITTING: It is not sensible to remit it for further reasons because Justices will have forgotten about it now. They will have heard it a long time ago. It will be ex post facto reasoning to try and get around the difficulties that I have identified in any event. If this case is to be retried it has to be bound to a different bench on a different occasion with all the evidence called over again. It is a bit of a storm in a teacup.[21]MISS HOLMES: That is certainly one view of the matter, given the reasons I have previously submitted. It is not something I have any instructions on.[22]MISS JONES: The only submissions I would make are these: I would hang on the coat tails of the "storm in a teacup" reference to this case when considering whether or not a retrial would be appropriate, bearing in mind the general principles of the public interest. What I would rely on, taking it a little bit further than that, is that regardless of the confusion that has led to the allowing of this appeal in relation to a reckless assault and how that could be founded on the evidence, my Lord has found, and it is clear in the case stated, that a deliberate action had been discounted on consideration by the Justices on that occasion. Bearing in mind that despite the fact that the convictions have been overturned, perhaps as a result of poor reasoning, what we can be clear about is that a deliberate punch had been rejected by them and an intention to assault had been rejected by them.[23]I would submit that perhaps on that basis, bearing in mind a lack of intent, that that probably fits quite nicely with the "storm in the teacup" phrase as to whether or not this matter should be retried.[24]MR JUSTICE MITTING: I wonder whether the route of it was not a failure to advise the magistrates about the transferred malice by a man who was simply punching out in temper in a general manner, rather than intending actually to attack the complainant. Who knows? It is very difficult to tell.[25]I think the way I have to deal with this is by quashing the conviction and giving the prosecution seven days in which to decide whether or not they wish the matter to be retried. If they do, then the matter will be remitted to the justices for re-hearing before a different bench. If, as I rather hope, but it is not for me, the prosecution decide that enough is enough, then after seven days the conviction will simply be quashed.[26]MISS HOLMES: My Lord, yes. I am very grateful for the comments. I will certainly contact the reviewing lawyer and express my own opinion about matters.[27]MISS JONES: There is one other matter, my Lord, to raise and that is the issue of costs. Mr Katsonis has privately funded this matter, so I make an application for costs to be taxed in the formal way and those who instruct me to send in the relevant schedule. I do not have an exact figure.

MR JUSTICE MITTING: Costs out of which pocket?

[29]MISS JONES: My understanding, although my experience in these matters is not vast, is that it would come from Central Funds.[30]MR JUSTICE MITTING: An order for costs out of Central Funds can only be made by the Divisional Court: two judges. We get around that by my going and speaking to another judge and explain what the circumstances are and see whether he agrees that an order for costs should be made out of Central Funds. Is that the course you seek?[31]MISS JONES: Yes, please, my Lord.

MR JUSTICE MITTING: Is there anything you want to say about that?

[33]MISS HOLMES: My Lord, no.[34]MR JUSTICE MITTING: You will have to let me go and speak to a brother judge, whereupon you will have your answer.[35]MISS JONES: I am very grateful, my Lord.[36]MR JUSTICE MITTING: Miss Jones, you are content, I take it, to wait for the answer rather than to wait in court for the answer?[37]MISS JONES: Yes.[38]MR JUSTICE MITTING: It will simply appear on the order either in your favour or not, as the case may be.[39]MISS JONES: I am grateful.